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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): November 15, 1996
Cohu, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-4298 95-1934119
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(State or other (Commission File No.) (IRS Employer
jurisdiction Identification No.)
of incorporation)
5755 Kearny Villa Road
San Diego, California 92123
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 277-6700
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ITEM 5. OTHER EVENTS.
(a) Adoption of Rights Agreement.
On November 15, 1996, the Board of Directors of Cohu, Inc. (the
"Company") declared a dividend distribution of one Preferred Stock Purchase
Right (each a "Right" and collectively the "Rights") for each outstanding share
of Common Stock, par value $1.00 ("Common Stock"), of the Company. The
distribution was paid as of December 3, 1996 (the "Record Date"), to
stockholders of record on that date. Each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of the Company's
Series A Preferred Stock, par value $1.00 (the "Preferred Stock"), at a price of
$90.00 (the "Purchase Price"). The description and terms of the Rights are set
forth in the Rights Agreement dated as of November 15, 1996 (the "Rights
Agreement"), between the Company and ChaseMellon Shareholder Services, L.L.C.
(the "Rights Agent").
Until the earlier to occur of (i) the tenth day following the first
date of public announcement by the Company or by a person or group of affiliated
or associated persons ("Acquiring Person") other than the Company or any
subsidiary of the Company, including, without limitation, in its fiduciary
capacity, any employee benefit plan or employee stock plan of the Company or of
any subsidiary of the Company, or any Person, organized, appointed, established
or holding Common Stock for or pursuant to the terms of any such plan or any
Person funding other employee benefits for employees of the Company or any
subsidiary of the Company ("Exempt Person"), that such an Acquiring Person has
acquired, or obtained the right to acquire, without approval of the Board of
Directors or good faith determination of the Board of Directors that such a
person or group of affiliated or associated persons has inadvertently become an
Acquiring Person, beneficial ownership of securities of the Company representing
15% or more of the outstanding Common Stock of the Company (other than solely as
a result of a reduction in the outstanding shares of the Common Stock of the
Company) or such earlier date as a majority of the Board of Directors shall
become aware of such acquisition of the Common Stock (the "Stock Acquisition
Date") (or, if the tenth day after the Stock Acquisition Date occurs before the
Record Date, the close of business on the Record Date) or (ii) the tenth
business day (subject to extension by the Board prior to the time a person
becomes an Acquiring Person) following the commencement of, or public
announcement of an intention to commence, a tender or exchange offer by any
person (other than by an Exempt Person), the consummation of which would result
in the beneficial ownership of 15% or more of the outstanding Common Stock by
such person, together with its affiliates and associates (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced, with
respect to all shares of Common Stock that are issued after the Record Date
prior to the Distribution Date (or earlier redemption or expiration of the
Rights), by certificates representing such shares of Common Stock together with
the Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be represented
by and
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transferred with, and only with, the Common Stock. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new certificates issued for
Common Stock (including, without limitation, certificates issued upon transfer
or exchange of Common Stock) after the Record Date, will contain a legend
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender for transfer of
any of the Company's Common Stock certificates, with or without the aforesaid
legend or the Summary of Rights attached thereto, will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Company's Common Stock as of the close of business on
the Distribution Date, and such separate certificates alone will evidence the
Rights from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. The Rights
will expire upon the earlier of (i) ten years after the date of issuance, or
November 14, 2006 or (ii) redemption or exchange by the Company.
The Purchase Price payable, and the number of shares of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of the
Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the Preferred Stock or (iii)
upon the distribution to holders of the Preferred Stock of evidences of
indebtedness or assets (excluding dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to above). The number
of Rights associated with each share of Common Stock is also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
The Preferred Stock purchasable upon exercise of the Rights will be
nonredeemable and junior to any other series of preferred stock the Company may
issue (unless otherwise provided in the terms of such other series). Each share
of Preferred Stock will have a preferential cumulative quarterly dividend in an
amount equal to the greater of (a) $225.00 or (b) 100 times the dividend
declared on each share of Common Stock. In the event of liquidation, the holders
of Preferred Stock will receive a preferred liquidation payment equal to the
greater of (a) $9,000 per share, plus accrued dividends to the date of
distribution whether or not earned or declared, or (b) an amount per share equal
to 100 times the aggregate payment to be distributed per share of Common Stock.
Each share of Preferred Stock will have 100 votes, voting together with the
shares of Common Stock. In the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged for or changed into
other securities, cash and/or other property, each share of Preferred Stock will
be entitled to receive 100 times the amount and type of consideration received
per share of Common Stock. The rights of the Preferred Stock as to dividends,
liquidation and voting, and in the event of mergers
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and consolidations, are protected by customary anti-dilution provisions.
Fractional shares (in integral multiples of one one-hundredth) of Preferred
Stock will be issuable; however, the Company may elect to distribute depositary
receipts in lieu of such fractional shares. In lieu of fractional shares other
than fractions that are multiples of one one-hundredth of a share, an adjustment
in cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise. Because of the nature of the
Preferred Stock's dividend, liquidation and voting rights, the value of one
one-hundredth of a share of Preferred Stock purchasable upon exercise of each
Right should approximate the value of one share of Common Stock.
In the event (i) any person becomes an Acquiring Person or (ii) any
Acquiring Person or any of its Affiliates or Associates, directly or indirectly,
(1) consolidates with or merges into the Company or any of its subsidiaries or
otherwise combines with the Company or any of its subsidiaries in a transaction
in which the Company or such subsidiary is the continuing or surviving
corporation of such merger or combination and the Common Stock of the Company
remains outstanding and no shares thereof shall be changed into or exchanged for
stock or other securities of any other person or of the Company or cash or any
other property, (2) transfers, in on one or more transactions, any assets to the
Company or any of its subsidiaries in exchange for capital stock of the Company
or any of its subsidiaries or for securities exercisable for or convertible into
capital stock of the Company or any of its subsidiaries or otherwise obtains
from the Company or any of its subsidiaries, with or without consideration, any
capital stock of the Company or any of its subsidiaries or securities
exercisable for or convertible into capital stock of the Company or any of its
subsidiaries (other than as part of a pro rata offer or distribution to all
holders of such stock), (3) sells, purchases, leases, exchanges, mortgages,
pledges, transfers or otherwise disposes to, from or with the Company or any of
its subsidiaries, as the case may be, assets on terms and conditions less
favorable to the Company or such subsidiary than the Company or such subsidiary
would be able to obtain in arm's-length negotiation with an unaffiliated third
party, (4) receives any compensation from the Company or any of its subsidiaries
for services other than compensation for employment as a regular or part-time
employee, or fees for serving as a director at rates in accordance with the
Company's (or its subsidiary's) past practice, (5) receives the benefit (except
proportionately as a stockholder) of any loans, advances, guarantees, pledges or
other financial assistance or tax credit or advantage, or (6) engages in any
transaction with the Company (or any of its subsidiaries) involving the sale,
license, transfer or grant of any right in, or disclosure of, any patents,
copyrights, trade secrets, trademarks or know-how (or any other intellectual or
industrial property rights recognized under any country's intellectual property
rights laws) which the Company (including its subsidiaries) owns or has the
right to use on terms and conditions not approved by the Board of Directors of
the Company, or (iii) while there is an Acquiring Person, there shall occur any
reclassification of securities (including any reverse stock split), any
recapitalization of the Company, or any merger or consolidation of the Company
with any of its subsidiaries or any other transaction or transactions involving
the Company or any of its subsidiaries (whether or not involving the Acquiring
Person) which have the effect of increasing by more than 1% the proportionate
share of the outstanding shares of any class of equity securities of the Company
or any of its subsidiaries which is directly or indirectly owned or controlled
by the Acquiring Person
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(such events are collectively referred to herein as the "Flip-In Events"), then,
and in each such case, each holder of record of a Right, other than the
Acquiring Person, will thereafter have the right to receive, upon payment of the
then current Purchase Price, in lieu of one one-hundredth of a share of
Preferred Stock per outstanding Right, that number of shares of Common Stock
having a market value at the time of the transaction equal to the Purchase Price
(as adjusted to the Purchase Price in effect immediately prior to the Flip-In
Event multiplied by the number of one one-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior to such Flip-In Event)
divided by one-half the average of the daily closing prices per share of the
Common Stock for the thirty consecutive trading days ("Current Market Price") on
the date of such Flip-In Event. Notwithstanding the foregoing, Rights held by
the Acquiring Person or any Associate or Affiliate thereof or certain
transferees will be null and void and no longer be transferable.
The Company may at its option substitute for a share of Common Stock
issuable upon the exercise of Rights in accordance with this paragraph such
number or fractions of shares of Preferred Stock having an aggregate current
market value equal to the Current Market Price of a share of Common Stock. In
the event that insufficient shares of Common Stock are available to permit the
exercise in full of the Rights in accordance with the foregoing paragraph, the
Board of Directors shall, to the extent permitted by applicable law and any
material agreements then in effect to which the Company is a party, (A)
determine the excess (such excess, the "Spread") of (1) the value of the shares
of Common Stock issuable upon the exercise of a Right in accordance with this
paragraph (the "Current Value") over (2) the Purchase Price, and (B) with
respect to each Right (other than Rights which have become void pursuant to the
foregoing paragraph), make adequate provision to substitute for the shares of
Common Stock issuable in accordance with this paragraph upon exercise of the
Right and payment of the Purchase Price, (1) cash, (2) a reduction in such
Purchase Price, (3) shares of Preferred Stock or other equity securities of the
Company (including, without limitation, shares or fractions of shares of
preferred stock which, by virtue of having dividend, voting and liquidation
rights substantially comparable to those of the shares of Common Stock, are
deemed in good faith by the Board of Directors to have substantially the same
value as the shares of Common Stock, (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing, having a value which,
when added to the value of the shares of Common Stock actually issued upon
exercise of such Right, shall have an aggregate value equal to the Current Value
(less the amount of any reduction in such Purchase Price); provided, however,
that if the Company shall not make adequate provision to deliver value pursuant
to clause (B) above within thirty (30) days following the Flip-In Event, then
the Company shall be obligated to deliver, to the extent permitted by applicable
law and any material agreements then in effect to which the Company is a party,
upon the surrender for exercise of a Right and without requiring payment of such
Purchase Price, shares of Common Stock (to the extent available), and then, if
necessary, such number or fractions of shares of Preferred Stock (to the extent
available) and then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. Rights are not exercisable following the
occurrence of the events set forth in the foregoing paragraph until the
expiration of the period during which the Rights may be redeemed as described
below.
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Unless the Rights are earlier redeemed, in the event that following the
first occurrence of a Flip-In Event, the Company were to be acquired in a merger
or other business combination in which any shares of the Company's Common Stock
are exchanged or converted for other securities or assets (other than a merger
or other business combination in which the voting power represented by the
Company's securities outstanding immediately prior thereto continues to
represent all of the voting power represented by the securities of the Company
thereafter and the holders of such securities have not changed as a result of
such transaction), or 50% or more of the assets or earning power of the Company
and its subsidiaries (taken as a whole) were to be sold or transferred in one or
a series of related transactions (such transactions are collectively referred to
herein as the "Flip-Over Events"), the Rights Agreement provides that proper
provision shall be made so that each holder of record of a Right (other than an
Acquiring Person, or affiliates or associates thereof) will from and after such
date have the right to receive, upon payment of the then current Purchase Price,
that number of shares of common stock of the acquiring company having a market
value at the time of such transaction equal to the Purchase Price divided by
one-half the Current Market Price of such common stock.
No fractional shares of Common Stock will be issued upon exercise of
the Rights and, in lieu thereof, a payment in cash will be made to the holder of
such Rights equal to the same fraction of the current market value of a share of
Common Stock.
At any time until the occurrence of a Flip-In Event, the Board may
redeem the Rights in whole, but not in part, at a price of $.001 per Right.
Immediately upon the action of the Board of Directors of the Company authorizing
redemption of the Rights, the right to exercise the Rights will terminate, and
the only right of the holders of Rights will be to receive the Redemption Price
without any interest thereon.
At any time after the occurrence of a Flip-In Event and prior to the
earlier of a Flip-Over Event or such time as any Person (other than an Exempt
Person), together with all Affiliates and Associates, becomes the Beneficial
Owner of more than 50% of the Common Stock outstanding, the Board of Directors
of the Company may, at its option, exchange all or any portion of the
outstanding Rights (other than Rights held by any Acquiring Person which have
become void) for shares of Common Stock on a pro rata basis, at an exchange
ratio of one share of Common Stock or one one-hundredth of a share of Preferred
Stock (or of a share of a class or series of the Company's Preferred Stock
having equivalent rights, preferences and privileges) per Right. Immediately
upon the ordering of such exchange and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive shares of Common Stock or Common Stock Equivalents
pursuant to the exchange. In the event there are insufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights, the Company shall take all actions necessary to authorize
additional shares.
Until the Rights become nonredeemable the Company may, except with
respect to the redemption price of the Rights, amend the Rights Agreement in any
manner. After the Rights become nonredeemable, the Company may amend the Rights
Agreement to
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cure any ambiguity, to correct or supplement any provision which may be
defective or inconsistent with any other provisions, to shorten or lengthen any
time period under the Rights Agreement, or to arrange or supplement the
provisions hereunder in any manner which the Company may deem necessary or
desirable, provided that no such amendment may adversely affect the interests of
the holders of the Rights (other than the Acquiring Person or its affiliates or
associates) or cause the Rights to again be redeemable or the Agreement to again
be freely amendable.
Until a Right is exercised, the holder, as such, will have no rights as
a stockholder of the Company, including, without limitation, the right to vote
or to receive dividends.
The issuance of the Rights is not taxable to the Company or to
stockholders under presently existing federal income tax law, and will not
change the way in which stockholders can presently trade the Company's shares of
Common Stock. If the Rights should become exercisable, stockholders, depending
on then existing circumstances, may recognize taxable income.
The Rights have certain anti-takeover effects. Under certain
circumstances the Rights could cause substantial dilution to a person or group
who attempts to acquire the Company on terms not approved by the Company's Board
of Directors. However, the Rights should not interfere with any merger or other
business combination approved by the Board.
The form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (including as Exhibit A the form
of Certificate of Designation, Preferences and Rights of the Terms of the Series
A Preferred Stock, as Exhibit B the form of Right Certificate, and as Exhibit C
the Summary of Terms of Rights Agreement), the Company's press release dated
November 18, 1996 and a form of letter to the Company's stockholders dated
December 5, 1996 are attached hereto as Exhibit 4.1 , Exhibit 99.1 and Exhibit
99.2, respectively, and incorporated herein by reference. The foregoing
description of the Rights is qualified in its entirety by reference to such
exhibits.
(b) Amendment of Bylaws.
On November 15, 1996, the Board of Directors amended and restated
Articles II and III of the Amended and Restated Bylaws of the Company to (i)
provide notice of stockholder business at annual and special meetings; (ii) set
forth provisions regulating the conduct of stockholders' meetings; (iii)
establish notice for stockholder nominations of director candidates; (iv) to
conform the provisions in the Bylaws relating to classified board of directors
and written consent of stockholders to the Corporation's Certificate of
Incorporation; (v) to provide expressly for telephonic participation in Board
meetings; and (vi) to permit the use of electronically transmitted proxies and
to revise the vote required for action by stockholders. The amended Articles II
and III are set forth in the Amended and Restated Bylaws of the Company attached
hereto as Exhibit 3.2 and incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (including as Exhibit A the form
of Certificate of Designation, Preferences and Rights of the Terms of the Series
A Preferred Stock, as Exhibit B the form of Right Certificate, and as Exhibit C
the Summary of Terms of Rights Agreement), the Company's press release dated
November 18, 1996 and a form of letter to the Company's stockholders dated
December 5, 1996 are attached hereto as Exhibit 4.1 , Exhibit 99.1 and Exhibit
99.2, respectively, and incorporated herein by reference.
The Amended and Restated Bylaws of the Company are attached hereto as
Exhibit 3.2.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COHU, INC.
Date: December 10 , 1996 By: /s/ John H. Allen
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John H. Allen
Vice President, Finance &
Chief Financial Officer,
Secretary
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EXHIBIT INDEX
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Exhibit Description
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3.2 Amended and Restated Bylaws of the Company dated November 15, 1996.
4.1 Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (including as Exhibit A
the form of Certificate of Designation, Preferences and Rights of the
Terms of the Series A Preferred Stock, as Exhibit B the form of Right
Certificate, and as Exhibit C the Summary of Terms of Rights
Agreement).
99.1 Press Release, dated November 18, 1996.
99.2 Form of Letter to Cohu, Inc. stockholders, dated December 5, 1996.